Defense Counsel Journal

Editor's Page - Volume 88, Number 3

Volume 88, No. 3

October 20, 2021

Parkerson_Christopher_2020_sized Christopher B. Parkerson

Christopher B. Parkerson

Christopher is the Defense Counsel Journal Editor for 2020-2022. He is a Member of Campbell Conroy & O’Neil, P.C. and serves on its Board of Directors. Christopher has extensive trial experience representing national and international corporations in the defense of catastrophic product liability, commercial, intellectual property, professional liability, and negligence matters throughout the United States. Christopher’s jury trial experience, combined with his work ethic and approach to the lawyer-client relationship, has allowed him to successfully guide clients through all aspects of litigation from Lead Trial Counsel to guidance on such issues as pre-suit ADR, witness preparation, and mock trials.

One of my responsibilities of serving as Editor of the Defense Counsel Journal is reviewing written materials submitted in support of presentations at IADC meetings to determine whether there is potential to expand the materials into journal articles that may reach a wider audience. It is a nice chance to review some of the cutting-edge topics in the law. I have found one fascinating area in these submissions to be the papers and presentations discussing the interaction of science and the law. These two disciplines cross paths often, and I find it very interesting to see how some of our IADC members recommend lawyers address scientific issues. 

There is no doubt that many lawyers spend countless hours arguing about various issues ranging from engineering, chemistry and biology to physics and economics. These arguments, while often in-depth and passionate, accept basic principles such as the importance of the scientific method in solving problems. The debate between experts often is the underlying factor in the outcome of major disputes. It is critical that lawyers be able to understand and advocate on the part of science. It is also important that judges, jurors, and administrative decision makers be able to accept the importance of the role of science in these disputes. 

The recent perception set forth in the media is that Americans are rejecting science and have no faith in science or scientists. Knowing the importance science plays in our jobs, these reports caused me to be concerned about how decisions may be made by people who reject science and are willing to take a stance on key issues without regard to opinions of experts. 

My concern was calmed somewhat by research from polling data put together by the Pew Research Center which show that the share of Americans with confidence in scientists to act in the public interest is positive and has even increased since 2016. As of 2019, 35% of Americans report “a great deal of confidence” in scientists to act in the public interest, up from 21% in 2016.  Only 13% of Americans have “not too much” or “no confidence” in scientists to act in the public interest. Compare this number to the less than 10% who have a “great deal of confidence” in elected officials or the news media to act in the public interest. Even more importantly, 63% of Americans say the scientific method “generally produces sound conclusions,” while only 35% think it can be used to produce “any result a researcher wants.”  

The worrisome data come when one further analyzes the “any result a researcher wants” category of information. According to the same Pew Research Center, only about 20% of U.S. adults say that scientists are transparent about potential conflicts of interest with industry groups. A similar percentage say that scientists admit their mistakes “all or most of the time.” A careful reader will also note that these data were collected prior to the COVID pandemic. It will be interesting to see how people view science and scientists after the pandemic given the impact that science and medicine has had on everyone from mask wearing to vaccines.

American’s faith in experts and science is important to monitor as it may fundamentally change the way lawyers advocate for their clients. It will also be interesting to see how the law adapts to these potential changes. I am certain the IADC and the DCJ will have more on these topics as they develop. 

This edition of the DCJ contains three outstanding articles. “Social Media Immunity in 2021 and Beyond: Will Platforms Continue to Avoid Litigation Exposures Faced by Offline Counterparts?” by Peter J. Pizzi is an excellent examination of Section 230 of the Communications Decency Act of 1996 and how the law has been interpreted in the face of the growing influence of social media. “Canada’s Evolving Response to Overlapping Multi-Jurisdictional Class Actions” by Justin Manoryk and Gordon McKee is a detailed review of the Canadian Courts’ approach to the challenge of multi-jurisdictional class actions. Finally, there is an article by Mica Nguyen Worthy, Melanie Huffines, and Savannah Putnam entitled “Discovering the Widening U.S. Circuit Split on Discovery Orders from ‘Foreign and International Tribunals’ Under 28 U.S.C. Sec. 1782” that provides excellent analysis regarding the different approaches taken by the Circuit Courts and sets the stage for future U.S. Supreme Court action to address the split. 

I am proud to say the DCJ was recently awarded a “Defensie,” an annual IADC award extended for outstanding IADC committee projects and work, for its excellence in podcasting. I encourage you to listen to the quarterly podcast so that you can get caught up on DCJ highlights. We released our third podcast, this time featuring John Nunnally focusing on witness preparation and cognitive fatigue as a factor in witness performance. Please visit the IADC Speaks podcast page on the IADC website and check it out.